IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140006880 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect his activation from 7 April 1968 through 11 April 1968 per Executive Order 11404 – Providing for the Restoration of Law and Order in the State of Illinois, dated 7 April 1968.

2.  The applicant states he was ordered to active duty by Executive Order 11404 from 7 April 1968 through 11 April 1968 and his DD Form 214 does not reflect this; thus, he was denied benefits from the Department of Veterans Affairs.

3.  The applicant provides:

* National Guard Bureau (NGB) Retirement Credits Record
* DD Form 220 (Active Duty Report)
* NGB Form 22 (Report of Separation and Record of Service in the Army National Guard)
* DD Form 214
* Executive Order 11404
* Illinois Army National Guard letter, dated 10 March 2014

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Illinois Army National Guard on 21 August 1967 for 6 years.

3.  The applicant's available records contain a DD Form 214 which shows he was ordered to active duty for training (ACDUTRA) as a member of the Illinois Army National Guard on 7 October 1967.  He was released from ACDUTRA with an honorable characterization of service on 19 February 1968 and returned to State control to complete his remaining service obligation.  This form shows he completed 4 months and 13 days of active service during this period.

4.  The applicant provided a DD Form 220 which reflects his activation with the Illinois Army National Guard from 7 April 1968 through 11 April 1968 under the authority of Department of Army message 858704, dated 7 April 1968.  This activation is subsequent to his ADT, not a continuation of that period of active service.

5.  The applicant's NGB Retirement Credits Record; DA Form 20 (Enlisted Qualification Record); State of Illinois General Orders Number 76, dated 20 July 1967; and 1st indorsement, dated 11 July 1972, subject:  Request for Transfer to Standby Reserves, reflect his Federal activation from 7 April 1968 through 11 April 1968 as the result of a civil disturbance in the city of Chicago.

6.  Executive Order 11404 – Providing for the Restoration of Law and Order in the State of Illinois, signed by President Lyndon B. Johnson on 7 April 1968 states, in part:  "The Secretary of Defense is hereby authorized and directed to call into the active military service of the United States, as he may deem appropriate to carry out the purposes of this order, units or members of the Army National Guard and of the Air National Guard to serve in the active military service of the United States for an indefinite period and until relieved by appropriate orders."

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214.  The instructions stated a DD Form 214 would be issued at the time of separation, regardless of the actual number of days served, to each member of the Regular Army and Reserve Components called or ordered to active duty or ACDUTRA for a period of 90 days or more.  A DD Form 214 would not be issued to members of the Reserve Components ordered to active duty or ACDUTRA for a period of less than 90 days, except those members separated for physical disability.

8.  Army Regulation 135-20 (Release from Active Duty, Reserve Components), then in effect, prescribed procedures and administrative instructions for the release of units and personnel of the Army National Guard and the U.S. Army Reserve.  Appendix A (Release of Members of Army National Guard Units Called to Active Military Service Because of Civil Disturbance) provided personnel and administrative processing procedures for the release of members of the Army National Guard called to active military service of the United States because of civil disturbance, when such was directed by Headquarters, Department of the Army.

9.  Appendix A-4 specifies, "Where these instructions are in conflict with existing regulations or publications, the provisions of this appendix will govern."  Records to be initiated included a DD Form 214 in accordance with Army Regulation 
635-5, but with some items being modified.  The following items would be modified as indicated:

	(a)  Enter "N/A" in items 4; 6; 7; 8; 9; 10a, b, and c; 12; 13b; 14; 15; 16; 17b; 18; 19; 21; 22a(2) and (3); 22b and c; 23a and b; 25; 27a, b, and c; and 29.

	(b)  Item 11a:  Enter "Rel to ARNG of (State)."

	(c)  Item 11c:  Cite Department of the Army message directing release followed by separation program number (SPN) 763.

	(d)  Item 17a:  "Other" block will be checked and enter "call (Executive Order number and date)."

	(e)  Item 17c:  Enter the date determined in accordance with Army Regulation 135-300 (Mobilization of Army National Guard of the United States and Army Reserve Units), chapter 3.

	(f)  Item 22a(1):  Enter number of months and days of active duty during this call.

	(g)  Item 24:  Enter "N/A" unless the member received an award during the period covered.

	(h) Item 30:  Enter "This abbreviated form issued to Army National Guard members per appendix A, this AR [Army Regulation]" on all abbreviated DD Forms 214 issued.  Of the requirements in paragraph 62, AR 635-5 only the entry pertaining to excess leave, if applicable, must be made.  For members who have performed ACDUTRA and active duty continuously and whose period of ACDUTRA would have expired during the period of active duty, DD Form 214 will cover dates of both types of service.  In such cases entry will be 'Period covered includes (month) (weeks) ACDUTRA from (enter date of entry on ACDUTRA) through (enter day prior to call) and active duty from (enter date of call) to (enter effective date of relief from active duty (date entered in Item 11d)).'"

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a DD Form 214 upon completion of his ACDUTRA from 7 October 1967 through 19 February 1968.

2.  The evidence of record reflects the applicant was ordered to active duty under the provisions of Executive Order 11404 and Department of Army Message 858704 in support of a civil disturbance.  He was activated on 7 April 1968 and he was released from active duty on 11 April 1968.  This second period of activation is subsequent to and not continuous with the first period of activation.

3.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  Noncontinuous periods of active duty are summarized on separate DD Forms 214; therefore, there is no basis for granting the applicant's request to amend his existing DD Form 214 to include the second period of activation from 7 April 1968 to 11 April 1968.

4.  Army Regulation 635-5, in effect at the time, specified that a DD Form 214 would not be issued to members of the Reserve Components ordered to active duty or ACDUTRA for a period of less than 90 days, except those members separated for physical disability.

5.  Army Regulation 135-20, in effect at the time, dictated the issuance of an abbreviated DD Form 214 to members of Army National Guard units called to active military service because of civil disturbance.  Although his period of active duty service under Executive Order 11404 was for a period of only 5 days from 7 April 1968 to 11 April 1968, it would be appropriate to issue the applicant an abbreviated DD Form 214 as a matter of equity to ensure he receives any and all veterans' benefits to which he is entitled.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing an abbreviated DD Form 214 reflecting active service dates from 7 April 1968 through 11 April 1968.  The following items will be modified as indicated:

(a)  Enter "N/A" in items 4; 6; 7; 8; 9; 10a, b, and c; 12; 13b; 14; 15; 16; 17b; 18; 19; 21; 22a(2) and (3); 22b and c; 23a and b; 25; 27a, b, and c; and 29.

	(b)  Item 11a:  Enter "Rel to ARNG of Illinois."

	(c)  Item 11c:  Cite Department of the Army Message 858704 followed by SPN 763.

	(d)  Item 17a:  "Other" block will be checked and enter "call Executive Order 11404, 7 April 1968"

	(e)  Item 17c:  Enter “7 April 1968.”

	(f)  Item 22a(1):  Enter “5 days of active duty during this call.”

	(g)  Item 24:  Enter "N/A" 

	(h) Item 30:  Enter "This abbreviated form issued to Army National Guard members per appendix A, Army Regulation 135-20.”  

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amendment of his DD Form 214 for the period ending 19 February 1968.



      ______________X___________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140006880



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006880



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1